New Development in Palestinian bid to Join International Criminal Court

Reports this week indicate that the Hamas leadership has signed a pledge to support any move by the Palestinian Authority to become a state party to the International Criminal Court Statute. Israel has not issued an official response to the statement. Readers will recall that there have been ongoing debates concerning the applicability of the Rome Statute to Operation Protective Edge as well as to the action of Hamas militants in firing rockets indiscriminately at the Israeli civilian population. Allegations of war crimes have been rife and broadly reported during the conflict. The UN Human Rights Council has established an independent inquiry into purported violations of international humanitarian and human rights laws in the Occupied Palestinian Territory, notably including East Jerusalem in the mandate.

On the 3rd and 7th of April this year the UN Secretary-General accepted, apparently with little difficulty, the accession of Palestine to fourteen international treaties (more here). These multiple treaty accessions by Palestine would likely create a strong precedent for accession to the Rome Statute, despite the clear concern articulated by the United States and Israel about the consequences of extending ICC jurisdiction. In 2009, the ICC rejected a Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. While the question of substantive “state” status has been substantively dodged by treaty accessions, it now appears that non-member state status may be sufficient for accession purposes. As noted here, the formal “political” action of the General Assembly, rather than the objective factors of whether Palestine satisfies the criteria of statehood, now increasingly seems to be enough for purposes of accession.

This leaves open the question of “effective control” as an important element of affirming the Court’s exercise of jurisdiction. Thoughtful commentary has suggested that because President Abbas does not have “effective control” over Gaza, the Palestinian Authority could face ouster from the Court on this basis. This latest move by Hamas confirms that factional political barriers to Palestinian accession are fast fading. The Hamas Declaration likely undercuts one element of the argument on a lack of effective control, and specifically confirms that all factions are agreed that they can also be held responsible for war crimes committed within the territory. This leaves unresolved another element of the effective control test, namely, that in view of the generally held international law position that all of the West Bank and Gaza is occupied by Israel, the occupying power retain overall responsibility for all acts committed on the territory. This argument essentially advances the view that the “effective control” test does not require the military presence of the occupier throughout the territory but rather

“the extent to which the Occupying Power, through its military presence, is exerting effective control over the territory and limiting the right of self-determination of the occupied population”

It seems unlikely that the formalities of occupation and its implications for “effective control” will be addressed in the accession process, but are clearly relevant to the assessment of responsibility in the analysis of war crimes. I would also hazard a guess that this important legal argument will not, on its own, function as a barrier to Palestinian accession. The consequences of Palestinian accession include the Court having jurisdiction over core Statute crimes committed in the Palestinian territories by all factions — genocide, war crimes and crimes against humanity. We may be inching closer to seeing the exercise of that jurisdiction.

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About the Author(s)

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).